Fairhead v West Australian Newspapers Ltd [No 3]
[2016] WASC 44
•15 FEBRUARY 2016
FAIRHEAD -v- WEST AUSTRALIAN NEWSPAPERS LTD [No 3] [2016] WASC 44
| SUPREME COURT OF WESTERN AUSTRALIA | Citation No: | [2016] WASC 44 | |
| 15/02/2016 | |||
| Case No: | CIV:2654/2002 | 30 NOVEMBER 2015 | |
| Coram: | KENNETH MARTIN J | 30/11/15 | |
| 21 | Judgment Part: | 1 of 1 | |
| Result: | Application to amend statement of claim refused | ||
| B | |||
| PDF Version |
| Parties: | ALAN FAIRHEAD DAVID REGAN & CO PTY LTD T/AS DONNYBROOK REAL ESTATE FRANCIS BARRON STEPHENSON HAYGARTH WEST AUSTRALIAN NEWSPAPERS LTD SOUTH WEST PRINTING AND PUBLISHING COMPANY LTD |
Catchwords: | Defamation trial Practice and procedure Plaintiffs' application for late amendments to statement of claim Case management considerations Leave to amend required in period seven weeks before trial Opposition to amendments Alleged forensic prejudice Defendants' application refused |
Legislation: | Nil |
Case References: | Aon Risk Services Australia Ltd v Australian National University [2009] HCA 27; (2009) 239 CLR 175 Bomanite Pty Ltd v Slatex Corp Aust Pty Ltd (1991) 32 FCR 379 Fairhead v West Australian Newspapers Ltd [2006] WASC 46 Fairhead v West Australian Newspapers Ltd [No 2] [2015] WASC 368 Hightime Investments Pty Ltd v Lungan [No 2] [2010] WASC 296 Moore v Lansdale Pty Ltd [2012] WASC 452 Sino Iron Pty Ltd v Mineralogy Pty Ltd [2014] WASC 406 Youssoupoff v MGM Pictures Ltd (1934) 50 TLR 581 |
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
- IN CIVIL
- First Plaintiff
DAVID REGAN & CO PTY LTD T/AS DONNYBROOK REAL ESTATE
Second Plaintiff
FRANCIS BARRON STEPHENSON HAYGARTH
Third Plaintiff
AND
WEST AUSTRALIAN NEWSPAPERS LTD
First Defendant
SOUTH WEST PRINTING AND PUBLISHING COMPANY LTD
Second Defendant
Catchwords:
Defamation trial - Practice and procedure - Plaintiffs' application for late amendments to statement of claim - Case management considerations - Leave to amend required in period seven weeks before trial - Opposition to amendments - Alleged forensic prejudice - Defendants' application refused
Legislation:
Nil
Result:
Application to amend statement of claim refused
Category: B
Representation:
Counsel:
First Plaintiff : Mr N D Dillon
Second Plaintiff : Mr N D Dillon
Third Plaintiff : Mr N D Dillon
First Defendant : Mr R J Anderson QC & Mr A V McCarthy
Second Defendant : Mr R J Anderson QC & Mr A V McCarthy
Solicitors:
First Plaintiff : Slee Anderson & Pidgeon
Second Plaintiff : Slee Anderson & Pidgeon
Third Plaintiff : Slee Anderson & Pidgeon
First Defendant : Lavan Legal
Second Defendant : Lavan Legal
Case(s) referred to in judgment(s):
Aon Risk Services Australia Ltd v Australian National University [2009] HCA 27; (2009) 239 CLR 175
Bomanite Pty Ltd v Slatex Corp Aust Pty Ltd (1991) 32 FCR 379
Fairhead v West Australian Newspapers Ltd [2006] WASC 46
Fairhead v West Australian Newspapers Ltd [No 2] [2015] WASC 368
Hightime Investments Pty Ltd v Lungan [No 2] [2010] WASC 296
Moore v Lansdale Pty Ltd [2012] WASC 452
Sino Iron Pty Ltd v Mineralogy Pty Ltd [2014] WASC 406
Youssoupoff v MGM Pictures Ltd (1934) 50 TLR 581
- KENNETH MARTIN J:
(This judgment was delivered extemporaneously on 30 November 2015 and has been edited from the transcript.)
1 Today is the commencement of the trial in CIV 2654 of 2002, which action was commenced by writ of summons, on 5 December 2002. The endorsement of claim to the plaintiffs' writ shows that the defamation action concerns two newspaper articles.
2 The first article was published in the country edition of The West Australian at page 36, on 14 November 2002. The second newspaper publication complained of is a (similar content) publication in The South West Times, published a week later, on 21 November 2002.
3 It would be a gross understatement to indicate that it has taken a long time for this action to reach a trial at the end of 2015. The sad, 13-year interlocutory history unfolding in terms of challenged pleadings, trips to the Court of Appeal, spells on the inactive cases list, multiple interlocutory applications and the like, is negatively unprecedented from a case management perspective: see Fairhead v West Australian Newspapers Ltd [2006] WASC 46; Fairhead v West Australian Newspapers Ltd [No 2] [2015] WASC 368.
4 By the state of the file, the plaintiff's substituted statement of claim, filed as a minute on 20 December 2004, delivers verbatim the five current imputations seen in par 9 of that pleading. They are that:
9.1 Mr Fairhead had been guilty of acting:
(a) dishonestly.
(b) further or alternatively, deceptively.
9.2 Donnybrook Real Estate employs an agent who has been found guilty of acting:
(a) dishonestly.
(b) further or alternatively, deceptively.
9.3 Donnybrook Real Estate does not disapprove of:
(a) dishonest;
(b) further or alternatively, deceptive,
conduct by agents employed by Donnybrook Real Estate.
9.4 Mr Haygarth is the proprietor of a business which deploys an agent who has been found guilty of acting:
(a) dishonestly.
(b) further or alternatively, deceptively.
9.5 Mr Haygarth does not disapprove of:
(a) dishonest.
(b) further or alternatively, deceptive,
conduct by agents employed by a business he owns.
5 As seen, one imputation concerns Mr Fairhead as first plaintiff. Concerning the second plaintiff, and its then business name Donnybrook Real Estate, there are two imputations raised by that second plaintiff. As regards the third plaintiff, Mr Haygarth, he complains of the two imputations at pars 9.4 and 9.5.
6 The same five allegedly defamatory imputations are complained of by the three plaintiffs in respect of the South West Times article, again, by the one imputation concerning Mr Fairhead, two imputations concerning Donnybrook Real Estate, and two concerning Mr Haygarth.
7 So there is a conceptual overlap in terms of the way the five imputations are formulated towards the two newspaper publications complained about. Effectively, they can be distilled even further, to two broad imputations. The first can be characterised as a general dishonesty imputation raised by Mr Fairhead, but then adapted towards his continued employment as a real estate agent, as regards the second and third plaintiffs.
8 Then as regards those two plaintiffs, there is a distinct conceptual imputation as to a contended 'not disapproving' of dishonest conduct, as regards real estate agents.
9 Practitioners in defamation law understand that the 'sun' around which the rest of the remainder of a defamation action orbits is invariably the imputations complained of as arising from an allegedly defamatory publication.
10 For this case, the five imputations (really only two in distilled concept) have been unaltered for almost 11 years now, as the alleged natural and ordinary meanings (or, to defamation lawyers, called popular or false innuendos) about which the three plaintiffs have complained in relation to the two newspaper publications of late 2002. These meanings are contended as the natural ordinary meanings of the words complained of, namely without any augmentations by way of extrinsic knowledge held in a reader. The plaintiffs' five imputations have represented, as they are now found in the papers for the judge, the status quo for (almost) 11 years - ie, since 20 December 2004. This trial has been programmed and prepared for by all counsel on that basis - until something happened last week.
11 Last Monday (23 November 2015) my chambers received a letter attaching a minute of proposed orders seeking directions from the plaintiffs' solicitors. Appended to that application for directions was a minute of third further re-amended substituted statement of claim. The minute of proposed amended pleading seeks leave to amend the statement of claim, to introduce at the trial what I assess to be significant augmentations to the range of the plaintiffs' imputations.
12 They are seen under par 9 of the minute as regards The West Australian article of November 2002. Identical changes are proposed by leave, as regards the imputations concerning the South West Times article under par 17. The proposed amended pleading as regards imputations complained of, if allowed, would seek to allege:
9. Given their natural and ordinary meaning, the words published in The West Australian Article meant and were understood to mean the following:
9.1 Mr Fairhead had been guilty
(a) of acting
(ii) further or alternatively, deceptively;
(b) further or alternatively, of failing to act honestly and fairly;
(b)(c) further or alternatively, of having deliberately failed to tell the purchasers of a Donnybrook home and orchard that figures given by the vendors for that year's apple harvest included figures for another property not included in the sale..
9.2 Donnybrook Real Estate employs an agent who has been found guilty
(a) of acting:
(ii) further or alternatively, deceptively;.
(b) further or alternatively, of failing to act honestly and fairly;
(b)(c) further or alternatively, of his having deliberately failed to tell the purchasers of a Donnybrook home and orchard that figures given by the vendors for that year's apple harvest figures included figures for another property not included in the sale.
9.3 Donnybrook Real Estate does not disapprove
(a) of:
(i)(ii) further or alternatively, deceptive,
conduct by agents employed by Donnybrook Real Estate.
(b) further or alternatively, its agents failing to act fairly and honestly;
(b)(c) further or alternatively, of its agents having deliberately failed to tell purchasers of a Donnybrook home and orchard that figures given by the vendors for that year's apple harvest included figures for another property not included in the sale.
9.4 Mr Haygarth is the proprietor of a business which employs an agent who has been found guilty
(a) of acting:
(ii) further or alternatively, deceptively.
(b) further or alternatively, of failing to act honestly and fairly;
(c) further or alternatively, of having deliberately failed to tell purchasers of a Donnybrook home and orchard that figures given by the vendors for that year's apple harvest included figures for another property not included in the sale.
9.5 Mr Haygarth does not disapprove
(a) of:
(b)(ii) further or alternatively, deceptive,
conduct by agents employed by a business he owns.
(b) further or alternatively, agents failing to act fairly and honestly;
(c) further or alternatively, agents having deliberately failed to tell purchasers of a Donnybrook home and orchard that figures given by the vendors for that year's apple harvest included figures for another property not included in the sale.
9A. Alternatively to the pleas in paragraph 9.2, 9.3 and 9.4 herein:
9A.1 The WAN Article bore and was understood to bear the meanings pleaded in paragraph 9.2 by way of innuendo.
PARTICULARS
- (a) The said publication was defamatory to those persons who knew that from about 11 May 2002 and onwards Donnybrook Real Estate operated under the registered business name Donnybrook First National Real Estate.
(b) WAN distributes The West Australian newspaper throughout Western Australia including the Donnybrook area.
(c) The Court will be asked to infer that a substantial number of readers knew the fact set out in particular (a) above.
9A.2 The WAN Article bore and was understood to bear the meanings pleaded in paragraph 9.3 by way of innuendo.
PARTICULARS
- The particulars of paragraph 9A.1 herein are repeated.
9A.3 The WAN Article bore and was understood to bear the meanings pleaded in paragraph 9.4 by way of innuendo.
PARTICULARS
- (a) The particulars of paragraph 9A.1 herein are repeated.
(b) The said publication was defamatory of Mr Haygarth to those persons who knew Mr Haygarth was the principal or owner of Donnybrook Real Estate.
(c) The Court will be asked to infer that a substantial number of readers knew the fact set out in particular (b).
14 Rather, from their minute, I assess there are to be some proposed augmentations, to expand the imputations at trial to include new meanings, particularly as seen under par 9.1(b), which would add that Mr Fairhead had been 'guilty':
(b) further or alternatively, of failing to act honestly and fairly;
15 A second major proposed augmentation would be to add, if leave were granted, a new 9.1(c) to contend that Mr Fairhead had been 'guilty':
(c) further or alternatively, of having deliberately failed to tell the purchasers of a Donnybrook home and orchard that figures given by the vendors for that year's apple harvest included figures for another property not included in the sale.
16 Donnybrook Real Estate is, in fact, a registered business name, once owned and used by the second (corporate) plaintiff. But subsequent to May 2002 the business name was no longer used.
17 The same augmentations are proposed under subpars (b) and (c) of 9.2, (b) and (c) of 9.3, (b) and (c) of 9.4, and (b) and (c) of 9.5.
18 There are other changes proposed as well as regards an issue of identification and the second corporate plaintiff. In this sphere, leave to amend is also sought under proposed par 9A. This alteration, conceptually, is somewhat different, going to the issue of the second plaintiff's identification, as a subject of each newspaper article.
19 A changed plea would seek to contend, as I read it, that the two articles were understood to bear all the meanings as are recently contended with knock on pleas to other paragraphs. This is by reason of what appears to be the attempt to invoke extrinsic facts alleged as being known to a person or persons who read those newspaper publications: see proposed new words 9A.1(a) in particulars:
(a) the said publication was defamatory to those persons who knew that from about 11 May 2002 and onwards Donnybrook Real Estate -
- (which I take to be a reference to the corporate second plaintiff)
operated under the registered business name Donnybrook First National Real Estate;
- (b) WAN distributes The West Australian newspaper throughout Western Australia including the Donnybrook area; and
(c) the Court will be asked to infer that a substantial number of readers knew the fact set out in paragraph (a) above.
21 Proposed par 9A needs to be read with existing par 2 of the plaintiffs' statement of claim. That plea contends, effectively:
2.3.1 Between 7 September 1999 and 10 May 2002, [Donnybrook Real Estate] operated under the registered business name Donnybrook Real Estate.
2.3.2 From about 11 May 2002 and onwards, [Donnybrook Real Estate] operated under the registered business name Donnybrook First National Real Estate.
2.3.3 At all relevant times, a reference to either of the registered trading names referred to in the preceding two sub-paragraphs was or could be identified as a reference of and concerning the business operated by Donnybrook Real Estate.
2.3.4 Alternatively to the plea in the preceding sub-paragraph, reasonable people with knowledge of the change of registered name as pleaded in par 2.3.2 above knew or would reasonably have from after 11 May 2002 a reference to 'Donnybrook Real Estate' was a reference of and concerning the business operated by Donnybrook Real Estate.
2.3.5 For the purposes of its business Donnybrook Real Estate relied upon a reputation for the honesty of its principal, agents and representatives.
22 What emerges as a conceptual distinction of substance between existing par 2 of the statement of claim and proposed par 9A is a distinction going to the issue of identification of the second plaintiff and then, correlatively, to the position of the third plaintiff, Mr Haygarth.
23 On the one hand, par 2 seeks to contend for identification of the second plaintiff in the two articles, simply on the natural and ordinary meaning of the words of the article(s) which, as seen, expressly identifies David Regan & Co as trading in the south-west town as Donnybrook Real Estate.
24 The issue of an unnamed plaintiff's identification in a defamation trial may be a somewhat complex issue: see Youssoupoff v MGM Pictures Ltd (1934) 50 TLR 581. Basically, it is a question of fact in each case. It may be that as an issue of fact what is written in the two articles is enough for the court to reach an inference that persons who read an article, identifying the entity trading as Donnybrook Real Estate, will link that entity to its former business name used up to May 2002. That is so, even though between May 2002 and when the newspaper articles were published in November 2002, the second plaintiff had then altered its trading name to Donnybrook First National Real Estate.
25 There are also some related and consequential implications, in terms of whether that second plaintiff corporate entity would have suffered a greater or lesser amount of damage, bearing in mind the second plaintiff corporation had changed its business name, on its own case, about five months before the two articles complained of were published in November 2002 (this action is so longstanding it precedes the 2006 uniform Defamation Acts across Australia which constrain the capacity of corporations to sue in defamation to 'excluded corporations').
26 The identification case sought to be made out under the proposed amendments, in respect of which leave is sought by par 9A, would be different to the par 2 case. It would seek to add to the par 2 alleged natural and ordinary meaning of the words, particular knowledge of a reader(s), as extrinsic facts - to attempt to make good a link as between the second plaintiff, the company, with its new business name subsequent to May 2002, with that link made by a sufficiently knowledgeable reader in November 2002, albeit the articles refer to the old business name, as catching the second plaintiff.
27 That is a different and expanded identification case, under a new par 9A as proposed. It is seeking to introduce new issues of fact into a trial about the events of 13 years ago. My assessment is that the par 9A proposed case, by way of a leading at trial of extrinsic evidence, is the basis upon which the plaintiffs correlatively on this application, seek leave to lead evidence at trial from the extra witnesses, namely, from Messrs Browning, Reynolds and Tuia.
28 The proposed additions by the plaintiffs' pleading amendments require leave. Leave is strenuously opposed by the defendants both on paper and then verbally this morning by senior counsel.
29 All this arises late and in circumstances where I had previously made extensive programming directions applicable to this trial, in May this year. Those directions have then been amended from time to time throughout the year. Witness summaries of all the parties' evidence were originally directed to be exchanged by the end of July 2015. That time line was extended several times after that. The new statements arrive well outside those time lines.
30 The foreshadowed new material only emerged from the plaintiffs last week.
31 The contention put against receiving it, on behalf of the defendants (who are confronted with having to deal on the run with all these late developments, in what was to be a four-day trial, extended before these latest developments to a five-day trial, although rapidly diminishing to a 4 1/2-day trial - through time lost on this application) is prejudice. They say they are heavily prejudiced forensically in their preparation for trial by not having had a fair opportunity to deal with all this late material. So it is said that if the amendments are allowed, fairness must correlatively require an adjournment of the trial, so it could not proceed over the rest of this week.
32 Beyond that, it is said that the plaintiffs are seeking only to shore up, late in their case, various deficiencies pointed to them at previous directions hearings. These deficiencies included the plaintiffs' vulnerability to a justification defence of truth, by reason of earlier 2015 amendments to the pleaded defence (not then opposed) and expressly raising the first plaintiff's criminal record. Alternatively, it is said the plaintiffs only picked up on their underlying exposure problems after reading the defendants' written opening submissions. (There had been a contemporaneous directed exchange of written opening submissions for the trial on 16 November 2015, on both sides.)
33 The legal position in relation to allowing late amendments has been dealt with by a number of cases in this court, in the aftermath of what is now the leading decision of the High Court in this sphere, in Aon Risk Services Australia Ltd v Australian National University [2009] HCA 27; (2009) 239 CLR 175.
34 I dealt extensively with the implications of Aon in an earlier decision, Moore v Lansdale Pty Ltd [2012] WASC 452, whilst dealing with late submitted expert reports. I referred there at [51] to the legal position about late materials for trial, prior to the Aon decision.
35 The effect of Aon has been to deliver a welcome policy shift in the law, essentially by narrowing what formerly used to be the almost unlimited (in practice) opportunities afforded to a party to amend, even at the very last minute, and notwithstanding that this might occasion an adjournment of the trial. Before Aon, courts would accommodate late amendments in the expressed interests of justice, notwithstanding that cases could not then proceed.
36 The pre-Aon approach tended to be, that prejudice to the other party could generally be accommodated by awards of lost costs, or an adjournment.
37 After Aon, that is no longer the position in Australia.
38 I said at [51] in Moore v Landsdale:
A court is traditionally reticent to prevent a party having its day in court and then, when it does, from putting its best foot forward in terms of adducing the best evidence available to it to support its case. A court is also loathe, in the interests of justice, to lay, at the doorstep of a party, possible faults, omissions or misdeeds of its legal advisers in carrying out their instructions or in timeously progressing a matter to trial. A court will usually weigh the possibility of an adjournment, or an adverse costs order in an attempt to redress a case management default, where it is in the overall interests of justice. But, as between parties in litigation, justice is not a one way street. And, as the High Court explained in Aon Risk Services Australia Ltd v Australian National University [2009] HCA 27; (2009) 239 CLR 175, there are broader public interests at play than simply the interests of the particular parties in the litigation.
39 In Aon, the plurality (Gummow, Hayne, Crennan, Kiefel & Bell JJ) at [100] referred to the law which I cited at [51] of Moore v Landsdale. They invoked the observations of French J, as he then was, in an earlier Federal Court decision, Bomanite Pty Ltd v Slatex Corp Aust Pty Ltd (1991) 32 FCR 379 where his Honour had said:
That may well have been so at one time, but it is no longer true today ... Non-compensable inconvenience and stress on individuals are significant elements of modern litigation. Costs recoverable even on an indemnity basis will not compensate for time lost and duplication incurred where litigation is delayed or corrective orders are necessary (392).
40 I refer also to my observations in Moore v Landsdale at [52]:
See also Aon [101], in relation to recognised pressures imposed by litigation even on corporations, and the ill effects of delays, not only upon parties to the proceedings. Other litigants in the justice system are also seeking a resolution of their proceedings in circumstances where the availability of court resources is finite and these days under some pressure.
41 At [53] of Moore v Landsdale, I also said, referring to [102] of Aon:
[T]he plurality referred to the significance of giving attention to the point where the litigation has reached, relative to trial in the context of a late application to amend. They continued in relation to considerations of delay and costs impacting upon a court's discretion:
'Invariably the exercise of that discretion will require an explanation to be given where there is delay in applying for amendment.'
Generally speaking, where a discretion is sought to be exercised in favour of one party, and to the disadvantage of another, an explanation will be called for ... Not only will they need to show that their application is brought in good faith, but they will also need to bring the circumstances giving rise to the amendment to the court's attention, so that they may be weighed against the effects of any delay and the objectives of the Rules.
43 At [55] - [56] I also referred to French CJ's separate reasons in Aon at [30] in terms of discretions under case flow management principles as:
… not supplant[ing] the objective of doing justice between the parties according to law.
- But then referred to the Chief Justice's further observations that there is a:
… potential for loss of public confidence in the legal system which arises where a court is seen to accede to applications made without adequate explanation or justification, whether they be for adjournment, for amendments giving rise to adjournment, or for vacation of fixed trial dates resulting in the resetting of interlocutory processes.
principles of case flow management requiring a just determination of litigation, as well as the … the efficient disposition of the Court's business, the efficient use of judicial resources, the timely disposal of business, and proportionality.
Determinations on plaintiffs' applications for leave to amend and call extra witnesses
45 I have had regard to the materials that have been filed in support of this application, since it was foreshadowed under the plaintiff's minute of Monday, 23 November 2015 last week - and about which the parties have had opportunity to confer. Strong contention, however, remains at the end of a conferral process.
46 The amendments which are sought to be made to the statement of claim are very late. They are thoroughly opposed as forensically prejudicial by the defendants, even to the extent of seeking that this trial not proceed, if the plaintiffs' late amendments be allowed. Each side has filed written submissions in terms of their positions, either seeking leave in the case of the plaintiffs and strenuously opposing leave to amend, in the case of the defendants.
47 I have had the advantage of being able to read and reflect upon the plaintiff's written submissions of Friday, 27 November 2015, and the defendant's written submissions of Sunday, 29 November 2015, opposing leave.
48 The end position I have reached is that I am not prepared to allow these late changes. I am deeply troubled by the implications of the late amendments to the innuendo pleas, as well as by the proposed changes under par 9A and counterparts.
49 The proposed new innuendo pleas are also conceptually problematic. They simply repeat verbatim words from the newspaper articles complained of. So framed, the augmentations, as I assess them, do not capture an essential essence of a sting in the words. That is a cardinal violation of a basic principle of defamation pleading law, as regards the natural and ordinary meanings of words complained of in a defamation action.
50 But going beyond that, bearing in mind some conceptual scope for limited imputation rehabilitation during the course of a defamation trial, potentially, it seems to me that the forensic prejudice to the defendants here - arising out of allowing such late amendments, is real.
51 The imputation developments emerge in circumstances where under the modern rules of court procedure there had been unlimited leave to amend, until seven weeks prior to the commencement of the trial. This was not availed of by the plaintiffs.
52 It has been only in the last working week before the trial that the current proposed changes have emerged from the plaintiffs. They carry the capacity to deliver forensic prejudice to the defendants, in terms of denying their opportunity for having a fair preparation period for a trial, such that if these amendments were to be allowed, particularly under a new par 9.1(c), I would need to accede to the foreshadowed correlative application on the part of the defendants for the adjournment of the trial. That would be necessary as a matter of basic fairness, in order for the defendants and those advising them to have a reasonable opportunity to deal with all the implications of late changes to the imputations and correlative matters concerning new witnesses proposed to be called.
53 With this action being live in this court for a week short of some 13 years, I assess that it would be unjust and intolerable if, at this late time, a trial, after so long, could not proceed to its conclusion in the days that have been allocated towards that objective this week.
54 There is also substance in the defendants' submission that had the formulations as seen under the proposed amendments to the imputations been in the form that we now see them proposed, that they might well have, in the face of meeting conceptually distinct imputations, undertaken deeper investigations of the underlying facts concerning the 1998 sale of the Donnybrook location and orchard - in terms of investigating at greater depth the sales conduct complaint that had been considered by the Real Estate and Business Agents Board (REBA) back in 2002, and with a view to pleading justification in relation to that.
55 The defendants, of course, were not bound by a tribunal's determinations in relation to those facts, for the purpose of generating some issue estoppel in these proceedings before a court. The tribunal appears to have only provided an outcome without any reasons, in any event.
56 To deny the defendants a fair opportunity in that respect by allowing a late amendment to par 9.1(c) or its counterparts would, I agree, deliver forensic prejudice. The underlying issue has not been made live until now, potentially.
57 I also accept a submission of defendants' senior counsel to the effect that the timetabling of an exchange of contemporaneous written submissions by the parties, outlining their opening positions on 16 November 2015, was never meant as a final opportunity for the plaintiffs to have pointed out to them for their correction all the deficiencies in their case - so they could only then begin to scurry about and try and fill holes - by chasing down late evidence, or changing pleadings to accommodate conceptual flaws in their case, drawn to their attention after 13 years by the defendants.
58 I agree that to allow that to unfold would defeat the object of a programmed exchange of written submissions, prior to the commencement of a trial.
59 Here, my impression is that the early exchange of opening written submissions for trial in the middle of this month has, effectively, stimulated the plaintiffs' advisers at the 11th hour to try and fill gaps in their case by undertaking some very late trial preparation. That, of course, is contrary to principles of modern case management for civil trials, let alone for a defamation trial, where a plaintiff's contended imputations are absolutely fundamental to the running of the whole trial.
60 So then, I cannot accede to the application of the plaintiffs for leave to amend in accordance with the imputation changes that they propose to their statement of claim under par 9 and its counterparts.
61 The position in respect of proposed identification changes under par 9A is different, in concept. But, again, it comes extraordinarily late in the day, in circumstances where there looks to have been an earlier tactical decision to proceed with the case only under par 2, on the basis of the asserted natural and ordinary meaning of the words as regards the second plaintiff.
62 If that is the tactical decision earlier made, then so be it. The late changes to par 9A foreshadowed would carry repercussions expanding the dimensions of trial by at least three more lay witnesses - and only delivering evidence summaries very late. This is in circumstances where this work was all supposed and summaries of witness evidence ultimately exchanged by early August this year. This is not the case of something helpful evidence-wise unexpectedly turning up at the last moment. This is just late trial preparation - which is unsatisfactory.
63 I also assess the explanations that have been proffered for this in the affidavits of Mr Dunne and of Mr Davies, dealing respectively with the investigations concerning witnesses and the pleading changes, to be unconvincing. I do not reject what they say. But all they relate does inform me that things that ought to have been attended to years ago, and have only now commenced to be addressed in the last few weeks. That is wholly unsatisfactory. Everyone has known since May this year that this action would be going to trial in November 2015 for four days (later for five days).
64 The explanations attempted to be proffered are not convincing. I refuse leave in those par 9A respects as well.
65 The last question, then, is in relation to the leave sought to adduce evidence from a further witness, Mr Kennedy.
66 I mention that I ordered for this case, as in other defamation trials, that it not proceed using formal witness statements. Evidence was to be led at trial from the witnesses in traditional fashion. Nevertheless, I had ordered as a matter of fairness, to alleviate surprises, that there should be an exchange of witness summaries before the trial. This was so that the parties could still be fairly appraised, a reasonable time before the trial, of the essence of the evidence to be led on each side from their lay trial witnesses.
67 To that end, a number of summaries were exchanged and filed at court (in accord with much amended directions) ultimately by early August 2015. A statement for Mr Kennedy has just arrived. It is obviously highly controversial.
68 Leave to allow Mr Kennedy to give evidence is thoroughly opposed by the defendants - for reasons as explained in Ms Honey's affidavit. Notwithstanding that, if I had looked at his foreshadowed evidence and reached a view that it could be accommodated without prejudice to the defendants and without derailing the trial - which has finally come on to be heard after 13 years - I would be tempted to allow the evidence.
69 Bearing in mind it is only a summary, the 25 November 2015 statement that recently emerged concerning Mr Kennedy does not seem to raise or carry with it any of the late pleading issues arising on the leave application I have now dealt with and refused. Most significantly, the Kennedy summary seems to be directed to an issue of the plaintiffs' claimed special damages.
70 The foreshadowed genre of evidence under the summary as proposed pars 13, 14 and 15 presents in relation to what Mr Kennedy would say he would have done. It is foreshadowed in terms of dealings with Mr Fairhead in terms of the ongoing business with Mr Fairhead and Donnybrook Real Estate.
71 There foreshadowed from Mr Kennedy under pars 13, 14 and 15 is:
When I found out about the articles, I spoke to my principal investor and informed him of the situation.
- (But the principal investor is not identified.)
He -
I take that to be a reference by Mr Kennedy to this so called 'principal investor' -
later notified me that both he and other investors -
(the other investor(s) are also not identified) -
decided that they no longer wanted me to use Alan or Frank's business for marketing and selling the project.
It was only the investors -
- (who I repeat are still unnamed) -
that made me change. I had the utmost respect and confidence in Alan and Frank's ability to market the project.
The articles were the only reason that I had to change real estate agents / agencies from Alan and Donnybrook Real Estate.
74 By par 16 Mr Kennedy would propose to say:
I eventually went to Angela Murphy at VNW (and then Summit Realty).
75 To state what should now be more than obvious, Mr Kennedy's foreshadowed evidence emerges very late in November 2015. I have given deep and distinct consideration to whether I could allow it to be led on a basis of weighing the prejudice asserted by the defendants in terms of their dealing with it so late.
76 But the forensic prejudice difficulty with the lateness - bearing in mind I ordered all summaries be exchanged by the end of July 2015 - and the issue in terms of whether there was ever any person out there who had reached a view that they were not going to deal further or at all with the second plaintiff's business, or Mr Fairhead, or with Mr Haygarth's business by reason of the article, has always manifested as a pivotal issue for this trial. An absence of any such direct evidence (until Mr Kennedy's summary emerging last week) has been raised by me in the context of remarks at direction hearings over the foreshadowed respective parties' expert evidence and the plaintiffs' claimed special damages which, in an indirect way, would proceed from an assumed (and always questionable) factual premise that these newspaper articles did deliver some adverse economic effect, not just against the general reputation of each plaintiff, but by way of special financial loss. The plaintiffs have been and are claiming special financial losses that each plaintiff seeks to quantify as a special financial loss suffered by them - claimed over and above their claims to general damages to their respective reputations.
77 What is foreshadowed under pars 13, 14 and 15 of Mr Kennedy's summary seems so vague and general or, indeed, offered in the form of inadmissible hearsay (vis-à-vis the unnamed investors), that if it were to be adduced in that form, it would not be admissible evidence. It would undoubtedly be, as is foreshadowed, objected to by the defendants.
78 Beyond that there is a question of affording a fair opportunity to the defendants, to be in a position to have pivotal evidence from Mr Kennedy and to evaluate, probe it; and make their own enquiries about what he is going to say - so as to be in a position to either accept or cross-examine upon it at the trial.
79 What is contained in Ms Honey's affidavit indicates that this was always highly controversial evidence from Mr Kennedy, and that the level of the enquiries that would typically be made by the defendants' legal advisers in terms of assessing it, to fully meet it at trial, will be extensive. Those enquiries have not been completed. Again this creates a true forensic prejudice for the defendants at this time.
80 In those circumstances, I assess it as unfair and prejudicial to the defendants to allow late evidence of this kind to be adduced from Mr Kennedy as is sought. Accordingly, I refuse the application for it to be led late from Mr Kennedy.
81 Accordingly, all these applications by the plaintiff which have inhibited the trial from advancing on day one, and as they have consumed all the morning, must be and are refused.
82 [NOTE: The action was consensually dismissed at the start of day two of the trial on 1 December 2015.]
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